Tag: Labour Court

The courts have found that the employee is protected by labour law from the moment the employment contract is concluded even if the employee has not yet started work. For example, in the case of Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39). Manqele was offered a position by the employer as a sales rep.

In a recent Labour Court judgment in the case of South African Revenue Services vs CCMA and Others, the court found the dismissal of an employee who was dishonest about his sick leave, to be substantively fair. In reaching its decision, the court made reference to the Woolworths v CCMA and Others case where an employee was dismissed after he applied for sick leave and but it was later established that he had travelled to support his local rugby team.

In many cases when employers hire executive level, management or key employees, there is a recognition that these hires can impact the success of the business, due to the individual's recognition in their industry, or knowledge and experience, or client and customer relationships, or a combination of all of these qualities.

The CCMA is tasked with resolving disputes between employers and employees through conciliation, mediation, and arbitration. However, there is a possibility that the commissioner could make a mistake during the process, which is why the grounds for reviewing a CCMA award are essential. This article will explore the grounds of review in the CCMA.

On 18 April 2023, the Constitutional Court handed down judgment in National Union of Metalworkers of South Africa (NUMSA) v Trenstar (Pty) Ltd (Trenstar). It had to consider the interpretation of section 76(1)(b) of the Labour Relations Act (LRA), which prohibits employers from using replacement labour during a lock-out unless the lock-out is in response to a strike.

The Commission for Conciliation, Mediation and Arbitration, commonly known as the CCMA, is a statutory body which aims to “advance economic development, social justice, labour peace and the democratisation of the workplace”.

In a recent judgment, the Labour Court has confirmed that instituting a claim for unlawful termination may follow an unsuccessful claim for unfair dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA). However, the principle of Res Judicata still applies where litigants formulate such a claim on the grounds of fairness.

Where the employer fails to attend an arbitration hearing the arbitrator is entitled to continue without the employer unless the arbitrator is aware of an acceptable reason for the employer’s absence.

Once an employee has resigned the employee cannot withdraw the resignation unless the employer consents thereto. This consent must be given prior to the expiry of the employee’s notice period when the resignation becomes effective, failing which a fresh agreement of employment will have to be concluded.

Before making any decision to retrench employers are required to first consult with the union or affected employees on a number of issues, the most important of which is any means of avoiding job losses.